Superior Court of New Jersey, Law Division, Bergen
Argued: January 19, 2018.
Blumenfeld, Esq., appearing for the Plaintiff, LG
Electronics, USA, Inc., (from the law offices of Hughes
Hubbard & Reed LLP).
Matthew F. Gately, Esq. and Charles R. Cohen, Esq. appearing
for the Defendants, ActionLink LLC, (from the law offices of
Cohn Lifland Pearlman Herrmann & Knop LLP).
Honorable Robert C. Wilson, J.S.C.
MATTER arises from a dispute regarding a Master Services
Agreement dated August 26, 2010 and two incorporated
Statements of Work dated December 1, 2010 and April 1, 2012
between LG Electronics U.S.A. Inc. ("LGEUS") and
ActionLink LLC ("ActionLink"). On June 3, 2015
LGEUS filed their complaint against ActionLink, claiming that
the Defendant intentionally overcharged LGEUS by
approximately $1.8 million for a fleet vehicle program that
ActionLink created pursuant to the above agreements. The
three counts of LGEUS's complaint are breach of contract,
common-law fraud, and breach of the implied covenant of good
faith and fair dealing.
now moves this Court for leave to amend their complaint in
three ways. First, Plaintiff asks to add a quotation from the
Master Services Agreement. Second, to change the word
"any" to "quarterly" in paragraph
eighteen of the complaint. Third, to amend the ad
damnum clause under count two of the complaint to demand
punitive damages for the alleged common-law fraud. Defendant
ActionLink opposes the Plaintiff s motion, and cross-moves
for dismissal of the Plaintiffs common law fraud claim. The
Defendant argues that common law fraud is not actionable in
this case pursuant to the economic loss doctrine and the
Plaintiffs failure to plead fraud with the requisite
OF LAW AND DECISION
LGEUS May Amend their Complaint to include the Word
"Quarterly" and the Quote from the Master Services
Agreement because those Amendments do not Prejudice
ActionLink and are not Futile.
Jersey Rules of Court provide that "[a] party may amend
any pleading ... by leave of court which shall be freely
given in the interest of justice." K 4:9-1. While
motions for leave to amend pleadings are to be liberally
granted, they are best left to the sound discretion of the
trial court in light of the factual situation existing at the
time each motion is made. Kernan v. One
Washington Park Urban Renewal Associates. 154 NX
437, 457 (1998) (citing Fisher v. Yates, 270
N.J.Super. 458, 467 (App. Div. 1994)). "That exercise of
discretion requires a two-step process: whether the
non-moving party will be prejudiced, and whether granting the
amendment would nonetheless be futile." Notte v.
Merchs. Mut. Ins. Co., 185 NX 490, 501 (2006). "If
a claim does not arise until after a complaint has been
filed, leave to amend to add that claim should be granted as
of course so long as the moving party has exercised due
diligence and the amendment will not cause the trial to be
unduly delayed or complicated." State v. Standard
Tank, 284 N.J.Super. 381, 396 (App. Div. 1995). A motion
to amend is properly denied where allowing the amendment
would unduly protract the litigation. Pressler,
Current N.J. Court Rules, comment 2.2.1 on R. 4:9- 1 (2015).
Although any asserted prejudice must amount to more than mere
inconvenience, if "the proposed amendments requires the
reopening of discovery, the prejudice to the non-moving party
will be considered greater than if the proposed amendment
presents only a new issue of law." Violas v. General
Motors Corp.. 173 F.R.D. 389. 396 (D.N.J. 1997)
(citing Harrison Beverage Co. v. Dribeck Importers.
Inc.. 133 F.R.D. 463. 469 (D.N.J. 1990)).
LGEUS may amend their complaint to substitute the word
"quarterly" instead of "any" and to
include the quote from the Master Services Agreement.
ActionLink does not object to the "quarterly"
amendment. Instead they claim that the theory of the case
represented by this amendment is ultimately of no merit. As
such, that portion of LGEUS's motion is granted.
the amendment to include the quote from the Master Services
Agreement is permissible under the Court Rules. The Master
Services Agreement is the underlying basis for the Plaintiffs
claims here, and as such including a quote from that
agreement does not prejudice the Defendant. Further, these
amendments do not change or add any cause of action brought
by the Plaintiff. ActionLink argues that such an amendment
would require the reopening of discovery, because neither
party has engaged in discovery regarding the "third
party pass through expenses" language. They point
specifically to discovery responses by LGEUS that indicate
their theory of the case is derived from the Statements of
Work and not the Master Services Agreement. This Court notes
that ActionLink's arguments regarding the above amendment
to include the word "quarterly" apply to this
subsequent amendment. If the parties have not in fact
collected discovery on the issue of "third party pass
through expenses, " such a theory would not prevail at
trial and therefore would no prejudice the Defendant.
pursuant to K 4:9-1, these amendments are not futile. The
instant amendments do not add new claims and thus, the motion
to amend is granted.
Count Two of LGEUS's Complaint is Dismissed Pursuant to
the Economic Loss Doctrine and LGEUS's Failure to Plead